Beaman v. Freesmeyer

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Appellate Court Date: 2017.09.27
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Beaman v. Freesmeyer, 2017 IL App (4th) 160527Appellate Court ALAN BEAMAN, Plaintiff-Appellant, v. TIM FREESMEYER,
Caption Former Normal Police Detective; DAVE WARNER, Former Normal
Police Detective; FRANK ZAYAS, Former Normal Police
Lieutenant; and THE TOWN OF NORMAL, ILLINOIS,
Defendants-Appellees.
District & No. Fourth District
Docket No. 4-16-0527
Filed August 4, 2017
Decision Under Appeal from the Circuit Court of McLean County, No. 14-L-51; the
Review Hon. Richard L. Broch, Judge, presiding.
Judgment Affirmed.
Counsel on Locke E. Bowman III, of Roderick & Solanage MacArthur Justice
Appeal Center, David M. Shapiro, of Northwestern Pritzker School of Law,
and Jeffrey Urdangen, of Bluhm Legal Clinic, all of Chicago, for
appellant.
Lucy B. Bednarek and Thomas G. DiCianni, of Ancel, Glink,
Diamond, Bush, DiCianni & Krafthefer, P.C., of Chicago, for appellee
Tim Freesmeyer.
James I. Kaplan, Thomas J. McDonell, and John A. Aramanda, of
Quarles & Brady LLP, of Chicago, for amicus curiae Civil Rights and
Police Accountability Project of the Edwin F. Mandel Legal Aid
Clinic of the University of Chicago Law School.
Panel JUSTICE KNECHT delivered the judgment of the court, with
opinion.
Justices Harris and Steigmann concurred in the judgment and opinion.
OPINION
¶1 In 2008, the Illinois Supreme Court overturned plaintiff’s conviction for the murder of his
ex-girlfriend, Jennifer Lockmiller, upon concluding the State violated his right to due process
when it failed to disclose material and exculpatory information about an alternative suspect.
People v. Beaman, 229 Ill. 2d 56, 890 N.E.2d 500 (2008). In April 2014, plaintiff initiated this
action, alleging defendants, Tim Freesmeyer, Dave Warner, and Frank Zayas, former officers
with the Normal police department, acted maliciously in investigating him and aiding in his
prosecution. Against these individual defendants, plaintiff asserted claims of malicious
prosecution, intentional infliction of emotional distress, and conspiracy. Plaintiff requested
damages from defendant, the Town of Normal, on theories of respondeat superior and
indemnification.
¶2 In June 2016, the trial court, finding no genuine issue of material fact as to plaintiff’s
claims of malicious prosecution, granted defendants’ motion for summary judgment. Plaintiff
appeals, arguing, in part, a reasonable jury could find in his favor on each of the elements of his
malicious-prosecution claim. We affirm.
¶3 I. BACKGROUND
¶4 A. Lockmiller’s Murder and the Investigation
¶5 On August 28, 1993, the body of Jennifer Lockmiller, a 21-year-old student at Illinois State
University, was found in her Normal, Illinois, apartment. Lockmiller’s shirt was pulled up,
exposing her breasts. Her shorts and underwear were down around one of her legs. The
electrical cord of an alarm clock was around Lockmiller’s throat. A pair of scissors protruded
from her chest. A box fan had been placed over Lockmiller’s face. Lockmiller died from
ligature strangulation with the cord of the alarm clock. The investigators found no one who had
seen Lockmiller alive after her class ended at 11:50 a.m. on August 25, 1993.
¶6 A number of police officers from the Normal police department were involved in the
investigation. These officers included defendants Tim Freesmeyer, a detective; Dave Warner,
a detective; and Frank Zayas, a lieutenant. Early in the investigation, starting in October or
November 1993, Freesmeyer served as the principal detective on the investigation. Warner’s
role included serving as an evidence custodian and investigating one of the suspects, Stacey
Gates. Zayas supervised the detectives who worked on the investigation until he retired in
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November 1994. Other individuals involved in the investigation included Charles Reynard, the
McLean County State’s Attorney, and James Souk, assistant State’s Attorney (ASA). Souk
acted as the lead prosecutor in plaintiff’s criminal case.
¶7 As Lockmiller’s apartment showed no sign of forced entry, the police focused the
investigation on individuals Lockmiller knew. The police questioned Lockmiller’s
then-current boyfriend, Michael Swaine, as well as former boyfriends, including plaintiff,
Stacey Gates, and Larbi John Murray. Swaine, who was once plaintiff’s roommate, had an
alibi. On August 25, 1993, the date Lockmiller was murdered, Swaine was working at a
bookstore in Elmhurst, Illinois. Gates, who had moved to Peoria to be closer to Lockmiller,
also had an alibi. Records from a Peoria school showed Gates was at work on August 25.
¶8 Through their investigation, police learned Murray was Lockmiller’s drug dealer. The two
had also been lovers. Murray was twice interviewed by police. Initially, Murray reported
leaving town on August 24, 1993. Murray’s girlfriend, Debbie Mackoway, however, told
police they did not leave town until the afternoon of August 25. Murray then amended his
story, and his version was consistent with Mackoway’s report. Murray informed officers he
was alone at home before 2 p.m. on August 25. Murray resided 1.5 miles from Lockmiller.
Murray had a criminal history. He faced charges of drug possession with intent to deliver and
of domestic violence for the abuse of Mackoway. According to Mackoway, Murray also began
using steroids, which caused him to behave erratically. Both cocaine and steroids had been
found in Murray’s apartment. Murray agreed to submit to a polygraph examination. At the start
of the examination, Murray failed to follow instructions. The examiner terminated the
examination.
¶9 The police focused their investigation on plaintiff. Plaintiff and Lockmiller began dating in
July 1992. Their relationship was tumultuous. According to letters found in Lockmiller’s
apartment, plaintiff wanted their relationship to be monogamous, but he suspected Lockmiller
saw other men. The two ended and rekindled their relationship multiple times over the
following year. In that time, Lockmiller also became involved with Swaine, plaintiff’s
roommate.
¶ 10 At the time of Lockmiller’s murder, plaintiff was residing with his parents in Rockford,
Illinois. Rockford is approximately two hours from Normal by car. The State’s theory of the
case was that on August 25, plaintiff, after visiting a Rockford bank at 10:11 a.m., drove to
Normal, killed Lockmiller at noon, and returned to Rockford, where his mother saw him in his
room at 2:15 p.m. Freesmeyer, by performing a time trial, was able to establish plaintiff could
have made the trip in the time allotted by driving over the speed limit the entire way.
Freesmeyer, in another time trial, found it impossible for plaintiff to have made a 10:37 a.m.
call from the residence he shared with his parents after having been at the bank at 10:11 a.m. In
this time trial, however, Freesmeyer took the slower route and obeyed speed limits.
¶ 11 The investigation recovered seven fingerprints from the alarm clock. Two belonged to
plaintiff, four to Swaine, and one remained unidentified.
¶ 12 During the investigation, investigators interviewed David Singley, Lockmiller’s neighbor.
Singley informed investigators he arrived home from class at 2 p.m. on August 25 and heard
someone slam the door to Lockmiller’s apartment. Singley stated he heard the stereo, the door
open and close a second time, and footsteps. Singley also reported noticing, around 4:30 p.m.,
the stereo was off and the television had been turned on.
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¶ 13 On May 16, 1994, a meeting was held to determine whether to arrest plaintiff for
Lockmiller’s murder. Those in attendance included State’s Attorney Reynard, ASA Souk,
Freesmeyer, Zayas, Normal police chief James Taylor, and Detective Tony Daniels. During
the meeting, Reynard decided to charge plaintiff. Souk agreed. At his deposition, Daniels
testified he suggested a list of investigative avenues to pursue before arresting plaintiff. Souk
responded, “I think we’ve got our guy” and stated, “we went as far as we can with this case.”
Souk stated they were going to go ahead and issue a warrant for plaintiff’s arrest.
¶ 14 As of August 29, 1993, Souk had concluded plaintiff was the only suspect. He did not
believe Murray had a motive to kill Lockmiller. While prosecuting plaintiff, Souk knew
Murray provided Lockmiller with narcotics and marijuana and conflicting statements had been
made about whether Lockmiller owed Murray money. Souk also knew Murray made a mistake
regarding his alibi and corrected that mistake in a second interview. Souk did not find the
mistake suspicious. At the time of the trial, Souk knew Murray began taking steroids in
January 1994 and he had begun acting erratically. Before that time, Murray had not been
physically violent toward Mackoway.
¶ 15 Before trial, the State filed a motion in limine to exclude evidence of Lockmiller’s
relationships with men other than plaintiff and Swaine. The trial court reserved ruling on the
motion. Later, the State and plaintiff’s defense counsel discussed Lockmiller’s relationship
with an individual identified as “John Doe,” who was Murray. Souk told the court Doe had
“nothing to do with the case.” Souk had not disclosed to plaintiff’s trial counsel Murray’s
criminal records, which exposed his drug and steroid use as well as the incidents of domestic
violence, or the incomplete polygraph examination. Plaintiff’s trial counsel had no specific
evidence pointing to another individual who could have committed the offense. The trial court
granted the motion in limine.
¶ 16 B. Plaintiff’s Trial and Conviction
¶ 17 At trial, evidence established plaintiff, then a student at Illinois Wesleyan University, used
Lockmiller’s alarm clock to wake up for class. During the course of their relationship, plaintiff
stayed the night at Lockmiller’s up to four or five times a week.
¶ 18 Lockmiller’s neighbor, Mike Singley, testified at trial. During the 1993 spring semester,
Singley on multiple occasions heard plaintiff pounding on Lockmiller’s door late at night. He
also reported hearing plaintiff and Lockmiller yelling at each other.
¶ 19 Plaintiff testified, on an unspecified night that same spring, Lockmiller called him to end
their relationship. Plaintiff went to Lockmiller’s residence to retrieve his compact disc player.
Upon arriving at the apartment, plaintiff observed “John Doe’s” car in the parking lot. Plaintiff
pounded on Lockmiller’s apartment door. Lockmiller refused to let him enter her apartment.
Plaintiff continued pounding on the door and began kicking it, causing the door to break.
Plaintiff discovered Doe and Lockmiller inside the apartment. Plaintiff grabbed his compact
disc player and left. He yelled while inside the apartment but made no physical contact with
Doe or Lockmiller.
¶ 20 Evidence established another incident during which plaintiff forcefully broke Lockmiller’s
apartment door. In the summer of 1993, Lockmiller was in a relationship with Michael Swaine,
plaintiff’s roommate. One night in July 1993, plaintiff suspected Swaine was at Lockmiller’s
apartment. He broke the apartment door by pounding and kicking it. Upon entering the
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apartment, plaintiff did not see Swaine. Plaintiff verbally confronted Lockmiller but made no
physical contact. Plaintiff remained at the apartment for 30 to 45 minutes.
¶ 21 Plaintiff testified his night shift at his uncle’s grocery store ended at 9 a.m. on August 25.
Plaintiff drove home to retrieve some cash and a check. He drove to the bank to make a deposit.
Plaintiff’s trip to the bank was confirmed by a bank security videotape that showed him leaving
the bank at 10:11 a.m. Plaintiff returned home and slept until 5 p.m.
¶ 22 Telephone records demonstrated two calls were made from the Beaman residence at 10:37
and 10:39 a.m. on August 25. The first call was to the Beaman’s church, the second to the
church’s director of music and youth ministries. Only two people could have made those calls:
plaintiff or his mother, Carol Beaman. Plaintiff did not recall placing those calls but stated he
could have done so. Carol denied making the calls. She testified she left the Beaman residence
around 7 a.m. and drove to her mother’s assisted-living facility. Carol took her mother to the
clinic and returned to the facility around 10 a.m. Carol testified she spent 15 to 20 minutes with
her mother inside the facility before driving to the Walmart store across the street. A receipt
shows Carol checked out at Walmart at 11:10 a.m. after having purchased copy paper, poster
frames, blue jeans, and magazine holders. Before returning home, Carol drove to other stores.
Her last stop was a grocery store, where she purchased perishable items. She checked out at
2:03 p.m. and headed home. Carol testified she was home by 2:16 p.m., but she had previously
told officers she arrived home around 3 p.m. When Carol arrived home, she noticed plaintiff’s
car in the driveway. Carol awoke plaintiff for dinner at approximately 6 p.m.
¶ 23 Freesmeyer testified regarding road tests he performed to test plaintiff’s opportunity to
murder Lockmiller. According to Freesmeyer, the distance between plaintiff’s bank and
Lockmiller’s apartment was 126.7 miles. Freesmeyer’s test indicated plaintiff, having left his
bank at 10:11 a.m., could have arrived at Lockmiller’s apartment before noon if plaintiff drove
10 miles per hour over the speed limit. Freesmeyer further testified 139.7 miles separated the
Beaman residence and Lockmiller’s apartment. He averred plaintiff could have made that trip
in just under two hours if he drove at a speed 10 miles per hour over the posted limit.
¶ 24 Freesmeyer performed a road test from plaintiff’s bank to the Beaman residence to see if it
was possible to make the phone call from the Beaman residence at 10:37 a.m. He testified he
drove through downtown Rockford, the “most direct route,” obeyed all speed limits, and
concluded it took 31 minutes to make the trip. Freesmeyer concluded plaintiff would have
arrived at 10:42 a.m. Freesmeyer testified it took him 15 minutes to drive from the Beaman
residence to the Walmart Carol shopped at on August 25. On cross-examination, Freesmeyer
acknowledged plaintiff did not state he drove through downtown Rockford on August 25.
Freesmeyer also agreed the route he took was through downtown Rockford and not on “the
high speed bypass” around the city.
¶ 25 In rebuttal argument, the State argued all of the other possible suspects were excluded due
to alibis: “Did we look at Mr. Swaine? You bet we did. Did we look at [Gates]? You bet we
did. Did we look at a lot of people and interview a lot of witnesses? You bet we did. And guess
who sits in the courtroom *** with the gap in his alibi still unclosed even after all this?”
¶ 26 The jury found plaintiff guilty of first degree murder. He was sentenced to 50 years’
imprisonment. On direct appeal, a majority affirmed plaintiff’s conviction. People v. Beaman,
No. 4-95-0396 (May 23, 1996) (unpublished order under Supreme Court Rule 23).
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¶ 27 C. Proceedings on Plaintiff’s Petition for Postconviction Relief
¶ 28 In April 1997, plaintiff filed a petition for postconviction relief. Subsequently, several
amendments were made to the petition. In its final form, plaintiff alleged, in part, the State
violated his right to due process by failing to disclose material information regarding Murray’s
viability as a suspect. An evidentiary hearing was held on plaintiff’s petition. After an
evidentiary hearing, the circuit court denied the postconviction petition. This court, with
Justice Cook dissenting, affirmed the denial. People v. Beaman, 368 Ill. App. 3d 759, 772, 858
N.E.2d 78, 91 (2006).
¶ 29 In 2008, the Illinois Supreme Court found the State violated plaintiff’s constitutional right
to due process of law when it failed to disclose the evidence related to Murray and reversed the
circuit court order denying his postconviction petition. People v. Beaman, 229 Ill. 2d 56,
81-82, 890 N.E.2d 500, 514-15 (2008). The supreme court summarized the undisclosed
evidence as consisting of four points: “(1) [Murray] failed to complete the polygraph
examination; (2) [Murray] was charged with domestic battery and possession of marijuana
with intent to deliver prior to [plaintiff’s] trial; (3) [Murray] had physically abused his
girlfriend on numerous prior occasions; and (4) [Murray’s] use of steroids had caused him to
act erratically.” Id. at 74, 890 N.E.2d at 511. The supreme court concluded the State’s case
against plaintiff “was not particularly strong” and “tenuous,” supporting the admission by
plaintiff “of the similarly probative alternative suspect evidence on” Murray. Id. at 77-78, 890
N.E.2d at 512. The supreme court further found, “[w]e cannot have confidence in the verdict
finding petitioner guilty of this crime given the tenuous nature of the circumstantial evidence
against him, along with the nondisclosure of critical evidence that would have countered the
State’s argument that all other potential suspects had been eliminated from consideration.” Id.
at 81, 890 N.E.2d at 514.
¶ 30 Plaintiff’s conviction was vacated and remanded. The State declined to re-prosecute
plaintiff and dismissed the charges against him. Plaintiff was released from prison in June
2008, and the State of Illinois, in April 2013, certified his innocence. Beaman v. Freesmeyer,
776 F.3d 500, 505 (7th Cir. 2015). The Governor of Illinois pardoned plaintiff “based upon
innocence as if no conviction.”
¶ 31 D. Plaintiff’s Federal Civil Suit
¶ 32 In January 2010, plaintiff filed a section 1983 complaint (42 U.S.C. § 1983 (2006)) against
defendants Freesmeyer, Warner, and Zayas as well as against Souk, Reynard, and other
detectives. Plaintiff alleged three federal claims: (1) defendants acting individually and in
conspiracy withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83(1963) (individual liability); (2) defendants conspired to deprive plaintiff of exculpatory
evidence (conspiracy liability); and (3) defendants failed to intervene to prevent the violation
of his rights. Beaman, 776 F.3d at 505. Plaintiff included state law claims for malicious
prosecution, civil conspiracy, and intentional infliction of emotional distress against the Town
of Normal. Id.
¶ 33 The claims against Souk and Reynard were dismissed based on absolute immunity or
qualified immunity. Id. at 506. The claims against the other detectives, individuals who are not
named defendants in this case, were dismissed after discovery revealed those detectives were
not involved in the suppression of evidence. Id.
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¶ 34 The district court granted summary judgment on the federal claims to the remaining
defendants, Freesmeyer, Warner, and Zayas, and the Seventh Circuit affirmed. The court
found insufficient evidence from which a jury could infer an agreement between the
defendants to withhold the Murray evidence. Id. at 513. The Seventh Circuit concluded “[t]he
defendants did not falsify any physical evidence or use any knowingly false testimony at trial.”
Id. at 512. As to Freesmeyer, the Seventh Circuit discounted plaintiff’s argument Freesmeyer
prepared a “deceptive” police report regarding the time trials. The court found “Freesmeyer
did not lie about the speeds at which he drove, and he was subject to cross-examination at trial
about the speeds and alternative routes.” Id. The court observed, “[t]his is the type of behavior
that will be present in every criminal prosecution—valid pursuit of a conviction.” Id. The court
also found “the defendants are entitled to qualified immunity for their failure to turn over the
Murray polygraph report to the prosecution and Beaman’s defense counsel.” Id. at 510. The
court did so after framing the question as to whether inadmissible information inculpating
another suspect could be Brady material. Id. Neither the district court nor the Seventh Circuit
addressed the state law claims of malicious prosecution, intentional infliction of emotional
distress, or conspiracy against the Town of Normal for lack of jurisdiction. Id. at 506.
¶ 35 E. Plaintiff’s State Civil Lawsuit
¶ 36 In April 2014, plaintiff filed this action against defendants Freesmeyer, Warner, Zayas, and
the Town of Normal. The complaint contained five claims: (1) malicious prosecution, (2)
intentional infliction of emotional distress, (3) civil conspiracy, (4) respondeat superior, and
(5) indemnification. In his complaint, plaintiff asserted the three individual defendants played
significant roles in his prosecution and wrongful conviction.
¶ 37 Plaintiff asserted Freesmeyer “advocated for, approved, and physically effected” his arrest.
Plaintiff alleged Freesmeyer moved into an office in the State’s Attorney’s office to work
full-time on plaintiff’s case and decided on the first day of the investigation plaintiff was “the
primary suspect.” Freesmeyer did so, according to plaintiff, even though the crime scene
suggested the murderer was “a perpetrator of considerable size and power” while “plaintiff
was thin and small” and Lockmiller’s drug use and “behavior” pointed to a number of other
possible suspects and “unsavory characters.” Plaintiff identifies Murray as the most significant
suspect in that he was a drug dealer, Lockmiller’s “sex partner,” used steroids and cocaine,
beat women, and lied about his alibi.
¶ 38 Plaintiff alleged Freesmeyer had a “continued fixation on plaintiff despite [a] lack of
evidence.” Plaintiff contends the evidence showed Freesmeyer and other detectives did not
investigate area burglaries or sexual assaults, did not interview individuals with whom
Lockmiller had been in contact before her murder, and failed to listen to other detectives “who
questioned their singular fixation.” Plaintiff contends Freesmeyer doctored the time trials by
driving within the speed limit and using the downtown route, not the bypass route favored by
Rockford locals, in order to secure plaintiff’s conviction, thereby “creat[ing] evidence”
indicating plaintiff did not make the calls from the Beaman residence. Freesmeyer further
avoided telling the jury he tested the bypass route and found, had plaintiff used the bypass
route, he could have made those calls. In contrast, when attempting to establish plaintiff could
have made the trip to Normal, Freesmeyer drove over the speed limit. Plaintiff highlights
evidence Freesmeyer threatened the death penalty during an interview of plaintiff and
Freesmeyer’s repeated efforts to secretly tape inculpatory statements from him.
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¶ 39 Before the trial court, plaintiff alleged Warner was liable to plaintiff for damages as a result
of burying a report regarding Murray’s polygraph. The report was addressed to Warner.
Warner testified he gave the report to Daniels, but Daniels had no memory of receiving it. The
State’s Attorney’s office did not receive a copy. According to the report, Murray denied
strangling Lockmiller and denied knowing who did. The report, however, was inconclusive,
given Murray’s failure to comply with specific directions:
“Throughout the course of this polygraph examination, the subject did not follow
specific directions given to him which are necessary for the proper completion of a
polygraph examination. After being advised several times to follow directions, the
subject informed this examiner that he was not able to comply. Subsequently, the
subject was dismissed from this laboratory.”
¶ 40 Defendants moved for summary judgment on plaintiff’s claims. Defendants maintained no
evidence established a genuine issue of material fact on four of the five elements of his
malicious-prosecution claim. Defendants contended, as a result, they are entitled to judgment
as a matter of law on the malicious-prosecution claim and the remaining claims, which plaintiff
predicated on the contention he was maliciously prosecuted.
¶ 41 F. Summary Judgment Order
¶ 42 In June 2016, the trial court granted defendants’ motion for summary judgment. After
listing the elements for a claim of malicious prosecution, the court found the prosecutors who
handled the case, not the defendant officers, decided to prosecute plaintiff. In support, the court
highlighted Daniels’s deposition testimony. The court pointed to Daniels’s statement that,
during the May 1994 meeting with investigating officers and lead prosecutors, Souk rejected
Daniels’s suggestions to investigate other avenues. Souk stated the investigation was complete
and an arrest warrant would be issued for plaintiff. The court explicitly found defendants “did
not exert any unusual influence on the prosecutors which caused a malicious prosecution to
take place against plaintiff.”
¶ 43 The trial court further found no genuine issue of material fact as to the remaining
malicious-prosecution elements or to plaintiff’s claims of intentional infliction of emotional
distress, conspiracy, respondeat superior, and indemnification.
¶ 44 This appeal followed.
¶ 45 II. ANALYSIS
¶ 46 A. Summary Judgment Standard and Standard of Review
¶ 47 When considering a motion for summary judgment, the court’s role is to ascertain whether
a genuine issue of material facts exists and not to resolve factual questions. Williams v.
Manchester, 228 Ill. 2d 404, 417, 888 N.E.2d 1, 8 (2008). A court should grant said motion
only when the depositions, pleadings, affidavits, and admissions, viewed in the light most
favorable to the nonmovant, show no genuine issue of material fact and demonstrate the
movant is, as a matter of law, entitled to a judgment. Pontiac National Bank v. Vales, 2013 IL
App (4th) 111088, ¶ 29, 993 N.E.2d 463 (citing 735 ILCS 5/2-1005(c) (West 2008)). Because
summary judgment is a drastic means to resolve a case, a trial court should grant summary
judgment only when the moving party’s right to a judgment is clear and free from doubt. Id. On
appeal, we review summary judgment orders de novo. Rettig v. Heiser, 2013 IL App (4th)
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120985, ¶ 30, 996 N.E.2d 1220.
¶ 48 B. Malicious Prosecution
¶ 49 Under Illinois law, a claim of malicious prosecution requires proof of each of the following
elements: “(1) the commencement or continuance of an original criminal or civil judicial
proceeding by the defendant[s]; (2) the termination of the proceeding in favor of the plaintiff;
(3) the absence of probable cause for such proceeding; (4) the presence of malice; and (5)
damages resulting to the plaintiff.” (Internal quotation marks omitted.) Swick v. Liautaud, 169
Ill. 2d 504, 512, 662 N.E.2d 1238, 1242 (1996). The failure to prove any one element prevents
recovery on the claim. Id. In this case, the trial court granted summary judgment upon
concluding plaintiff could not establish the first four elements of his malicious-prosecution
claim.
¶ 50 We begin with the first element: “the commencement or continuance of an original
criminal or civil judicial proceeding by the defendant[s].” (Internal quotation marks omitted.)
Id. Plaintiff acknowledges defendants did not sign the criminal complaint or initiate the
criminal proceedings against him, but he argues the element is satisfied so long as defendants
played a “significant role” in commencing or continuing his prosecution. Plaintiff,
highlighting the detectives’ conduct in (1) assisting the prosecution, (2) testifying before the
grand jury, and (3) conducting time trials, contends the element requires only proof of a
significant role: “[t]he standard is satisfied if a defendant played a ‘significant role’ in
commencing or continuing a prosecution.”
¶ 51 The “significant role” language, used by plaintiff and in malicious-prosecution litigation,
originated in Frye v. O’Neill, 166 Ill. App. 3d 963, 975, 520 N.E.2d 1233, 1240 (1988), a
decision plaintiff relies upon. In Frye, we considered a malicious-prosecution claim against a
police officer, not a prosecutor. Id. at 967, 520 N.E.2d at 1235. While the parties did not
dispute whether the officer commenced or continued the plaintiff’s prosecution, this court, in
defining the malicious-prosecution tort, clarified the suit could proceed against the officer even
though the officer did not sign the complaint against the plaintiff. We stated the following:
“Liability for malicious criminal prosecution is not confined to situations where the defendant
signed a complaint against the plaintiff. Rather, liability extends to all persons who played a
significant role in causing the prosecution of the plaintiff, provided all of the elements of the
tort are present.” Id. at 975, 520 N.E.2d at 1240 (citing 54 C.J.S. Malicious Prosecution §§ 18,
19 (1987)).
¶ 52 Interestingly, the language used by this court does not show a conclusion that a “significant
role” would satisfy the commenced-or-continued element. We stated those who had a
significant role could still be liable for malicious prosecution so long as “all of the elements of
the tort are present.” (Emphasis added.) Id. Under Frye, the term “significant role” does not
relieve the plaintiff of proving any element of malicious prosecution, including the
commenced-or-continued element.
¶ 53 Tracing the use of the “significant role” language from Frye to other Illinois decisions
shows a transition to use of the “significant role” language as proof of the commencement
element without any analysis of the element and its role in malicious-prosecution suits. The
First District in Rodgers v. Peoples Gas, Light & Coke Co., 315 Ill. App. 3d 340, 348-49, 733
N.E.2d 835, 842 (2000), cited Frye as showing “liability extends to all persons who played a
significant role in causing the prosecution of the plaintiff, provided all of the elements of the
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tort are present.” (Emphasis added.) The Rodgers court then concluded sufficient evidence
precluded summary judgment against an officer who allegedly participated in a scheme to
entrap the plaintiff as a question of fact existed as to “whether his actions caused the institution
of the criminal proceedings.” Id. at 349-50, 733 N.E.2d at 842-43. The Northern District of
Illinois, in Padilla v. City of Chicago, 932 F. Supp. 2d 907, 928 (N.D. Ill. 2013), cited Rodgers
but dropped the “provided all of the elements of the tort are present” language and stated, so
long as the officer played a “significant role in causing the prosecution, he can be held liable.”
The Padilla court then determined, without any further analysis of the prerequisite finding an
individual commenced or continued litigation against the plaintiff, the officers commenced or
continued the prosecution as the prosecutor relied on the observations of the arresting officers.
Id. at 928-29. Similarly, the Second District in Bianchi v. McQueen, 2016 IL App (2d) 150646,
¶ 72, 58 N.E.3d 680, cites Rodgers but failed to include the “provided all of the elements of the
tort are present” language and considered only whether the defendants “played a significant
role in causing the prosecution of the plaintiff[s]” when evaluating whether the
commenced-or-continued element was sufficiently proved.
¶ 54 We question the propriety of limiting consideration of the commencement element to only
the significance of one’s role in instituting the prosecution. Such a limitation exposes police
officers to undue malicious-prosecution cases for performing usual investigatory police work
when a prosecutor makes a mistaken decision to pursue a conviction.
¶ 55 Defendants, on the other hand, contend proof of the element requires a causal link, such as
undue influence, between the conduct of the police officer and the prosecutor’s decision to
prosecute. In support of this contention, defendants largely rely on two cases: Fabiano v. City
of Palos Hills, 336 Ill. App. 3d 635, 647, 784 N.E.2d 258, 270 (2002), and Kim v. City of
Chicago, 368 Ill. App. 3d 648, 660, 858 N.E.2d 569, 579 (2006). Fabiano, however, does not
support defendants’ contention. While the Fabiano court considered affidavits from
prosecutors asserting the ASAs decided to prosecute with no influence by the officers, the
Fabiano court did not consider or hold whether proof of undue influence was necessary.
Fabiano, 336 Ill. App. 3d at 649-50, 784 N.E.2d at 272. The court in Kim concluded “the
record does not indicate that the detectives engineered plaintiff’s prosecution or prevented the
assistant State’s Attorney from exercising her independent discretion to proceed with charges
and the prosecution.” Kim, 368 Ill. App. 3d at 660, 858 N.E.2d at 579. The court did so,
however, in dicta, after concluding the case failed due to no evidence of a lack of probable
cause and without citing or considering relevant case law.
¶ 56 Two other cases mentioned in defendants’ brief, however, demonstrate, in the case of a
civilian reporting a crime to a police officer, the civilian is not deemed to have commenced or
continued the proceeding absent pressure or direction the officer make an arrest or knowingly
providing false information to that officer. In Denton v. Allstate Insurance Co., 152 Ill. App.
3d 578, 504 N.E.2d 756 (1986), for example, the court concluded judgment for the defendant
insurance company on plaintiff’s malicious-prosecution claim was proper because there was
no evidence the defendant knowingly gave false statements to the police or pressured the
officer into swearing out a complaint. Id. at 583-84, 504 N.E.2d at 760. The court did not
examine the significance of the role the insurance company played in the prosecution, but
whether the insurance company initiated the criminal proceeding or its “participation [was] of
so active and positive a character as to amount to advice and cooperation.” Id. at 583, 504
N.E.2d at 760. Geisberger v. Vella, 62 Ill. App. 3d 941, 943, 379 N.E.2d 947, 949 (1978),
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provides the same: “Such an attribution would require a showing that a defendant requested,
directed, or pressured the officer into swearing out the complaint for the plaintiff’s arrest or
that one of the defendants knowingly gave false information to the police.”
¶ 57 Recently, the Seventh Circuit Court of Appeals, when considering Illinois’s
malicious-prosecution law, reached a similar conclusion as to an arresting police officer’s
report to a prosecutor who decided to prosecute. Colbert v. City of Chicago, 851 F.3d 649 (7th
Cir. 2017). The court held an arresting police officer could not be held liable for malicious
prosecution absent “ ‘an allegation of pressure or influence exerted by the police officers, or
knowing misstatements by the officers to the prosecutor.’ ” Id. at 655 (quoting Reed v. City of
Chicago, 77 F.3d 1049, 1053 (7th Cir. 1996)). The Colbert court observed it had previously
noted malicious-prosecution cases against police officers “can often be ‘anomalous,’ ”
explaining as follows:
“ ‘[T]he State’s Attorney, not the police, prosecutes a criminal action. It is conceivable
that a wrongful arrest could be the first step towards a malicious prosecution. However,
the chain of causation is broken by an indictment, absent an allegation of pressure or
influence exerted by the police officers, or knowing misstatements by the officers to
the prosecutor.’ ” (Emphasis in original.) Id. (quoting Reed, 77 F.3d at 1053).
The Seventh Circuit held a plaintiff must show “ ‘some postarrest action which influenced the
prosecutor’s decision to indict.’ ” Id. (quoting Snodderly v. R.U.F.F. Drug Enforcement Task
Force, 239 F.3d 892, 902 (7th Cir. 2001)). The Seventh Circuit examined the record to
determine if there was any evidence the alleged false statement influenced the decision to
indict or that the prosecutor relied on the false statement to obtain the indictment and found
none. Id.¶ 58 The same test used in malicious-prosecution cases against a civilian who reports a crime
and in cases against arresting officers who provide information to a State’s Attorney should
apply here, where police officers investigated a crime and reported findings to a State’s
Attorney who decided to prosecute the plaintiff. We hold in order to find a police officer
usurped the State’s Attorney’s decision-making role and that officer is responsible for
commencing or continuing a criminal action against a plaintiff, the plaintiff must establish that
officer pressured or exerted influence on the prosecutor’s decision or made knowing
misstatements upon which the prosecutor relied. See id. This holding protects officers in their
performance of their police work while allowing plaintiffs to seek redress from officers who
use fabrications or exert pressure on the prosecutor to secure prosecution of the innocent.
¶ 59 We turn to the facts to determine whether sufficient evidence exists to withstand summary
judgment against each individual defendant.
¶ 60 1. Defendant Freesmeyer
¶ 61 In asserting sufficient evidence exists for a jury question on the commenced-or-continued
element in his claim against Freesmeyer, plaintiff contends Freesmeyer “headed the
investigation ***, lied to the grand jury, doctored the time trials, omitted exculpatory evidence
from his police reports, threatened plaintiff with the death penalty, moved into the prosecutor’s
office, gave misleading trial testimony, and disregarded every fact that did not fit his theory of
the crime.” Plaintiff does not, however, identify any facts showing Freesmeyer pressured or
exerted influence on the State’s Attorney and ASA’s decision to prosecute plaintiff. In fact, the
evidence proves otherwise. Souk testified the decision was his. Daniels, who was present at the
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May 1994 meeting, supported that conclusion by showing Souk shut down any effort to leave
the case open.
¶ 62 None of these “facts” support a finding Freesmeyer pressured or exerted influence on
Souk’s decision to prosecute plaintiff. The evidence shows the prosecutors, Reynard and Souk,
made the decision to prosecute plaintiff. No witness testimony contradicts this conclusion.
And, as the trial court concluded, the testimony of Detective Daniels shows Souk, during the
May 1994 meeting, refused to consider additional evidence and decided it was time to
prosecute plaintiff.
¶ 63 We then turn to the question of whether Freesmeyer provided false information to Souk or
Reynard to influence the commencement or continuation of plaintiff’s prosecution. Plaintiff’s
conclusory statements identify two types of evidence that were allegedly fabricated: the time
trials and Freesmeyer’s testimony before the grand jury. This evidence, however, does not
support plaintiff’s conclusion. For instance, there is no proof in the record Freesmeyer tainted
or falsely reported the time trials. Indeed, the Seventh Circuit examined similar allegations
against Freesmeyer and found “Freesmeyer did not lie.” Beaman, 776 F.3d at 512. We find
Freesmeyer’s efforts were to show plaintiff’s conduct could have fit within the State’s theory
of the case. “This is the type of behavior that will be present in every criminal
prosecution—valid pursuit of a conviction.” Id.
¶ 64 We disagree with plaintiff’s statement Freesmeyer lied to the grand jury about his
interview with Singley. Plaintiff contends Freesmeyer, ignoring Singley’s statements, told the
grand jury no helpful information had been learned from Lockmiller’s neighbors during the
investigation, but Singley’s interview helped rule out plaintiff as a suspect. Freesmeyer’s
statement is a conclusion he did not find the information helpful:
“Q. Without going into individual details, were the other residents of the apartment
building shortly after the discovery of the body, in the next few days, questioned
extensively?
A. Yes. ***.
Q. Would it be a fair summary of those interviews that all of them produced no
eyewitnesses to the crime and no information that turned out [to] be particularly helpful
in the investigation?
A. That’s correct.”
Testimony from plaintiff’s trial shows Freesmeyer identified a reason for that belief:
“Q. You’re aware, I take it, or you were aware very early in the investigation when
Mr. Singly [sic] gave his statement of his observations about having heard doors open
and close, and people walking up and down stairs at certain times on—and also air
conditioning going on and off at certain times on Wednesday?
A. Yes, I’m aware of that, sir.
Q. Fairly early in the investigation did you discount Mr. Singley’s observations as
being inaccurate?
A. Yes, sir, I did.
***
A. Well, first of all, nobody could pick out Mr. Swaine’s vehicle from the photos
we showed them. Second of all, Mr. Singley stated he heard the door, that same door
open and close on Friday as he did on Wednesday, and everybody on the team was in
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agreement that Miss Lockmiller was deceased long before Friday. And also he stated
he saw Swaine’s vehicle there on Wednesday, and I’d already spoken with Miss
Betteridge from Elmhurst. She stated that Mr. Swaine was at her side until 3:15 that
day. There was absolutely no way that that car could have been in Normal on
Wednesday.”
¶ 65 We conclude plaintiff has identified no evidence from which a reasonable jury could
conclude Freesmeyer pressured or exerted influence on Souk or Reynard in making the
decision to prosecute plaintiff or provided knowingly false statements leading to plaintiff’s
prosecution or allowing its continuation. We affirm the order granting summary judgment to
Freesmeyer on this claim.
¶ 66 2. Defendant Warner
¶ 67 Regarding Warner, plaintiff contends a genuine issue of material fact exists as to whether
Warner is liable for malicious prosecution for burying the Murray polygraph report, a report he
asserts both the Northern District of Illinois and the Illinois Supreme Court found to be
“material and exculpatory.” In his role in the investigation, Warner was to ensure Zayas
received a copy of the report, submit the report for record keeping, and disseminate copies to
the investigators working on the case. Plaintiff’s contention the evidence is sufficient to create
a genuine issue of material fact on the commenced-or-continued element is predicated on the
fact Warner’s role was significant and the record was material to the case.
¶ 68 First, we note plaintiff misstates the holdings of the federal district court and our supreme
court. Neither court found the failed and inadmissible polygraph result, considered alone, to be
material and exculpatory. In his federal litigation against defendants, the district court found all
evidence related to Murray, “[t]hough not strong evidence, taken together, Murray’s erratic
behavior from steroids, history of domestic assault including elbowing his girlfriend in the
chest, and possible evasion during the polygraph *** suggest he could have been the culprit.”
(Emphasis added.) Beaman v. Souk, 7 F. Supp. 3d 805, 823 (C.D. Ill. 2014). The Illinois
Supreme Court plainly found the failure to disclose the information related to Warner,
including the incomplete polygraph examination, the domestic battery and drug charges, the
prior physical abuse of his girlfriend, and his use of steroids and erratic behavior, material.
Beaman, 229 Ill. 2d at 58-59, 74-75, 890 N.E.2d at 502-03, 510-11.
¶ 69 We find the evidence does not create a genuine issue of material fact on the question of
whether Warner commenced or continued the prosecution. No evidence shows Warner
encouraged or exerted pressure on Souk to prosecute. No evidence shows Warner knowingly
provided Souk false information. It would be speculative for a jury to find a polygraph report,
indicating only that the test was incomplete due to a failure to follow instructions, would have
had any bearing on Souk’s decision to prosecute plaintiff. In his deposition, Souk testified
Murray had no motive to kill Lockmiller. Souk knew about Murray when he decided to arrest
plaintiff. During the prosecution, Souk knew Murray and Lockmiller had been involved
sexually. Souk knew Murray had made two separate statements about the time he left town,
meaning Murray potentially lied and Murray was in town when Lockmiller was murdered.
During the prosecution of plaintiff and before plaintiff’s trial, Souk learned of Murray’s steroid
use and erratic behavior and the domestic abuse allegations, and he continued prosecuting
plaintiff. Souk already knew Murray’s character was questionable. The report did not establish
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a motive to murder Lockmiller or provide evidence establishing Murray as the killer—the two
bases for Souk’s decision ruling out Murray as a suspect.
¶ 70 The trial court properly granted summary judgment in Warner’s favor.
¶ 71 3. Defendant Zayas
¶ 72 Plaintiff made three allegations regarding Zayas’s role leading to his prosecution: (1)
Zayas participated in the May 1994 meeting, during which the decision was made to prosecute
plaintiff; (2) Zayas supervised the detectives who worked on the case; and (3) Zayas allowed
the arrest to occur, knowing the “case was half-baked.” Plaintiff, however, points to no
evidence from which a jury could conclude Zayas commenced or continued the criminal suit
against him. No evidence shows Zayas pressured or exerted influence over Reynard and
Souk’s decision to prosecute, and there is no evidence of any false statements by Zayas to the
prosecutor. Because plaintiff cannot establish the first element of his malicious-prosecution
claim, Zayas is entitled to summary judgment.
¶ 73 C. Intentional Infliction of Emotional Distress
¶ 74 The trial court held plaintiff’s claim of intentional infliction of emotional distress was
based and contingent upon his malicious-prosecution claims against defendants and granted
summary judgment on that claim. On appeal, plaintiff’s only challenge to that holding is the
conduct in “pursuing plaintiff’s conviction maliciously, disregarding and manipulating the
evidence, and sending an innocent man to prison for a dozen years for a crime he could not
have committed” constitutes extreme and outrageous conduct. Plaintiff fails to develop this
argument or cite relevant authority. He has forfeited this claim. Ill. S. Ct. R. 341(h)(7) (eff. Jan.
1, 2016); see also Elder v. Bryant, 324 Ill. App. 3d 526, 533, 755 N.E.2d 515, 521-22 (2001)
(“Mere contentions, without argument or citation of authority, do not merit consideration on
appeal.”).
¶ 75 D. Conspiracy
¶ 76 The elements of a civil-conspiracy claim are as follows: (1) a combination of two or more
individuals, (2) for the purpose of accomplishing by concerted action an unlawful purpose or a
lawful purpose by unlawful means, (3) in the furtherance of which one of the conspirators
committed an overt tortious or unlawful act. Fritz v. Johnston, 209 Ill. 2d 302, 317, 807 N.E.2d
461, 470 (2004). The tortious or unlawful act alleged is defendants’ alleged malicious
prosecution of plaintiff. Because we have found defendants Freesmeyer, Warner, and Zayas
are entitled to summary judgment on plaintiff’s malicious-prosecution claims, plaintiff cannot
establish the third element of his civil-conspiracy claim. We affirm the trial court’s order
granting summary judgment to defendants on plaintiff’s conspiracy claim.
¶ 77 E. Respondeat Superior and Indemnification Claims
¶ 78 Plaintiff, on appeal, acknowledges the respondeat superior and indemnification claims are
dependent on the claims against the individual defendants. Given our finding summary
judgment was properly granted on the individual claims, we conclude the trial court properly
granted summary judgment on the respondeat superior and indemnification claims.
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¶ 79 III. CONCLUSION
¶ 80 We affirm the trial court’s judgment.
¶ 81 Affirmed.
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